An ALJ found MMI occurred when a treating doctor imposed permanent restrictions and not the later date in a supplemental report when he officially deemed claimant at MMI. The Commission affirmed the opinion without comment. That finding raises several implications for the doctor to address the issue at the time of the last medical appointment to reduce disputes about ongoing or terminated TTD benefits. Steinkamp v American Airlines, 2014 MO WCLR Lexis 119 (Sept. 24, 2014).
Claimant can recover TTD after a determination of MMI, according to the Commission in Greer v System Food, 2014 MO WCLR Lexis 41 (3-28-2014). The ALJ found claimant reached MMI in 2007 following a foot injury, but the Commission awarded an additional 32 3/7 weeks of TTD following a disputed revision surgery which one expert concluded was unnecessary and would have a predictably poor result.
"The phrase "maximum medical improvement" is not found in § 287.170 RSMo, the section authorizing an award of temporary total disability benefits, nor is that phrase defined or found anywhere in Chapter 287. Of course, the concept of maximum medical improvement is helpful to the extent it permits the fact-finder to identify the point at which the question of permanent disability becomes ripe for determination. See Cardwell v. Treasurer of Mo., 249 S.W.3d 902, 910 (Mo. App. 2008). But in a case such as this one where the employee's condition does not appreciably improve (or even worsens) despite further surgeries, applying a per se rule that temporary total disability benefits cannot be awarded after the date of maximum medical improvement works an absurd result. This is especially true here, where such a rule would require us to ignore the uncontested expert medical testimony on the issue."
Experts: Berkin, Schmidt
Claimant was not entitled to recover SIF for a prior neck injury after he hurt his knee at work because the neck condition was not at MMI and continued to include surgical treatment. Miller v Treasurer, 2014 MO. App. Lexis 314 (March 25, 2014). The claimant offered no explanation to disregard the holding in Hoven v Sachs Electric, 414 S.W.3d 676 (Mo. App. 2014).
In order to recover benefits for permanent disability a claimant must show a disability is permanent. A claimant may fail to recover benefits if a claimant is not at MMI or the condition itself is not permanent.
In Hoven v Sachs Electric, 2012 Mo. WCLR Lexis 145 (July 19, 2012) the Commission reversed an award of $7305 in benefits against the Second Injury Fund because claimant failed to introduce persuasive evidence that his condition was permanent. Claimant's expert provided a provisional rating that claimant's condition was permanent, but the amount of disability could change if claimant received more treatment. Claimant provided equivocal testimony about plans to pursue further treatment after reporting limited improvement following previous surgeries.
In Hoven v Sachs Electric, 2013 Mo App. Lexis 1397 (Nov. 26, 2013) the court of appeals affirmed a finding that no persuasive evidence existed that claimant's condition was permanent. The court found that a settlement with the employer did not create a presumption of permanent disability in a claim against the fund, and indicated there was no evidence the settlement itself was in evidence.
Atty: Christenson, Da-Niel
Experts: Schlafly, Lichtenfeld
This result is very similar to the court of appeals decision in Cantrell v Baldwin Transportation, in which a surviving spouse could not recover benefits because claimant was not at MMI at the time of his death. Cantrell v Baldwin Transportation, 296 S.W.3d 17 (Mo. App. 2009). Claimant injured his shoulder in December 2006, a physician recommended surgery, and claimant died from unrelated causes before the surgery in July 2007. Like Hovens, the claimant obtained a disability rating and asserted he was at MMI because his treatment was "on hold" and he was deemed at the time not a surgical candidate. The Court of Appeals affirmed the Commission's denial of benefits. The court found that the recommendation for additional surgery supported a finding that claimant had not achieved MMI and benefits had not accrued. The treating surgeon had not placed claimant at MMI, by implication, although that remains unclear from the opinion.
Additional medical treatment may undermine any expert opinions about MMI. The Commission found that the ALJ erred finding MMI in 1998 for purposes of SIF liability, when claimant had three subsequent back surgeries that improved her function. Her surgeon placed her at MMI 7 years later in 2005. Key v Aldi, 2011 MO WCLR Lexis 29.
A stipulation or finding of disability of MMI must be consistent with the records. For example, a finding that PTD disability occurred when the employer closed its plant in 2000 was not consistent when claimant continued to treat for another 4 years and the parties stipulated to 2004 as the correct date. Gruendler, ec. v Union Camp Corp., 2010 MO WCLR Lexis 127.
A stipulation must include the amount of prior disability. In one case the parties stipulated to a settlement in Kansas of $60,000 but not the prior percentage of disability, and the ALJ independently found 30% prior disability resulting in a different starting date for SIF benefits. Mayse v Jeff Honor Roofing, 2011 MO WCLR Lexis 19.